Introduction
Cultural heritage has a plethora of uses and values that are connected to history, identity, power, politics, and social and economic structures.Footnote 1 The roles played by heritage are fundamentally important for Indigenous peoples, to whom heritage is also central to cultural survival.Footnote 2 In the Indigenous context, a history of cultural dispossession and colonial and imperialistic ideas of European cultural superiority over Indigenous peoples embedded the normalization of practices where European powers and their culturally dominant groups stole, with impunity, from Indigenous cultures.Footnote 3 One of such practices is now known as cultural appropriation, which still relies on an ongoing power imbalance between dominant cultural groups and Indigenous peoples and continues to pose significant threats to Indigenous heritage.
Indigenous advocates have frequently highlighted the importance of cultural heritage for their identity, social, economic, cultural, and legal systems, and ultimately, survival,Footnote 4 such that appropriation of Indigenous heritage may affect Indigenous peoples especially hard. For these reasons, Indigenous groups have often been at the forefront of efforts opposing cultural appropriation, frequently basing their claims on their right of control over their heritage and the need to rethink existing legal regimes, such as intellectual property law.Footnote 5 Part of the progress achieved by this mobilization is reflected in the occasional success of restitution claims, where Indigenous groups have asked for their heritage, looted by colonial powers and settler states, to be returned to them.Footnote 6 While discussions about restitution of material objects have been under way for decades, the same is not true for intangible heritage. As the following section shows, intangible cultural heritage (ICH) is essential for Indigenous peoples, their identities, cultures, and survival; yet Indigenous ICH is also under constant threat of misappropriation, and unlike tangible heritage, the restitution of ICH has not been sufficiently explored as a possible remedy for appropriation or other threats to heritage.
This article seeks to start filling this gap by reappraising restitution and expanding its concept to understand how it can also apply, as a remedy to appropriation, in the context of ICH. Given that ICH, for its immaterial nature, is nonexclusionary and nonrivalrous, talking about its restitution might be counterintuitive. Nevertheless, I propose that the possibilities of restitution can be broadened to apply to intangible heritage, in which case, as the immaterial heritage element cannot be physically returned to the source community, what is returned is the control over it. To explore this argument, I address the restitution of control through three different but often overlapping and complementary dimensions: (1) control as power and participation in heritage decision-making and management; (2) control as stewardship and assurance of respect; and (3) control as voice in shaping heritage narratives.
These dimensions of control can be used to substantiate claims for restitution of appropriated ICH as such dimensions give specific content to the claims, enable actions capable of remedying harms caused by appropriation, and might help address broader systemic issues of imbalance that are enablers of appropriation. In other words, thinking of restitution of appropriated ICH as a viable remedy means to ensure the conventional purpose of the mechanism is reached (return the community to the position they were prior to the appropriation). But it is also about going beyond it, incorporating pathways to redress for the broader context and history of injustice that led to the wrongdoing (appropriation) in the first place and to change this context to prevent future injustice.
While I propose restitution of control as a viable pathway for redress in cases of appropriation of Indigenous ICH, I do not unpack the specific mechanisms of how this control could be incorporated into an existing or new regime or exhaust the analysis of how the return of control can unfold in practice, particularly due to how context-specific this return can be. Instead, promoting a general practice of restitution of control over ICH, before seeking to force it into hard law or spell out its specific technical or procedural apparatus, might be a more feasible route to reshape the restitution debate to include ICH as its object. The goal here is thus to recognize restitution of control as an alternative solution vis-à-vis the immaterial and nonexclusionary nature of ICH. As follows, this paper explores what it means to talk about restitution of misappropriated heritage that is intangible, hence, by definition, nonexclusionary. It examines the role and potential of restitution of control over appropriated ICH, how it can affect communities and possibly offer a more culturally adequate form of redress for the harms caused by misappropriation. This argument is not without its challenges, with the practical implementation of returned control being one of such challenges that require further elaboration. For now, this paper focuses on the theoretical exercise of expanding the concept of restitution and assessing its remedial potential for appropriated ICH.
To set off this analysis, the following section first explores and conceptualizes intangible heritage and the challenges it poses for the conventional notion of restitution, then focusing on cultural appropriation as the threat to ICH capable of causing serious harms to the affected source community. It also briefly notes the legal gap regarding responses to this threat that requires us to reappraise restitution in an effort to try and fill the gap. Section 3 focuses on the remedy to the threat. It first considers what does already exist in international law addressing this issue, identifying legal pillars on which the argument of this paper can build, but noting the superficiality in which the current legal responses are framed. It then explores the conventional notion of restitution and expands it through the proposition of restitution of control as a way to enable the return of heritage that is intangible and nonexclusionary. The three dimensions of control are examined in their scope and possible effects. Section 4 concludes this piece.
Intangible Cultural Heritage and Its Misappropriation
Intangible Heritage
Intangible heritage “refers to traditional forms of cultural expression, passed from one generation to the next, and that constitute an important part of a given community or group’s identity.”Footnote 7 The main international instrument safeguarding ICH, the United Nations Educational, Scientific and Cultural Organisation (UNESCO) Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH), defines it as “practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.”Footnote 8 The CSICH further recognizes ICH’s living dimension as intergenerational heritage that is “constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.”Footnote 9 Thus, ICH is fluid and can be continuously adjusted and recreated, still enabling that “sense of identity and continuity” to the communities and groups that hold it.Footnote 10
A community’s laws and normative systems, their governance structures and rules for political and social conduct, may also be perceived as their ICH, which confirms the importance of these intangible elements to their identity, but also their “sense of shared experience”Footnote 11 and existence as a group.Footnote 12 Indigenous peoples’ traditional knowledge is also part of their ICH, and it can be fundamental in the group’s spirituality, adaptability, customary resource management systems, and “beneficial uses of the flora and fauna in [their] territories.”Footnote 13 In a nutshell, ICH plays several important roles in the lives, identities, cultures, and survival of Indigenous communities, such that harms caused to that intangible heritage can affect the community in various and severe ways.
Cultural appropriation
Despite drawing growing attention in the past decades and being the center of some discussions in domestic and international fora, the term “cultural appropriation” still does not have a consensual definition in the scholarship.Footnote 14 Not only its definition but the very phenomenon itself remains contested and controversial.Footnote 15 Experts disagree on whether it is a threat requiring a legal response or if it is a necessary (and positive) aspect of a cosmopolitan and multicultural world,Footnote 16 or still, if its regulation would cause the undue limitation of fundamental rights like freedom of expression and the restriction of the cultural commons.Footnote 17
While it is important to acknowledge this debate and the controversies around the concept, I deliberately adopt a particular definition of cultural appropriation to bypass the controversies, perceiving appropriation as a cultural phenomenon with often negative consequences and in need of a legal response. I choose to bypass the debate and perceive appropriation as harmful because this approach reflects a common standpoint Indigenous representatives adopt internationally against appropriation and the harms it causes to Indigenous groups and their heritage. As I approach the issue of appropriation and restitution of ICH in the context of Indigenous communities, I deliberately take an Indigenous-oriented perspective on the topic. While it remains a contested topic, sometimes even within Indigenous groups, most commonly in Indigenous peoples’ international mobilization for the safeguarding of their heritage, appropriation is perceived negatively and in need of regulation,Footnote 18 so that is also the view here.
Against this background, cultural appropriation takes place where a dominant cultural group (or an individual or corporation from that group) takes or copies from and uses the cultural elements of another, subordinated, cultural group, without the latter’s input, authorization, or consent and with no acknowledgement of the source group or benefit-sharing.Footnote 19 As I focus on ICH, cultural appropriation of intangible heritage also refers to this unauthorized taking or copying and use of intangible Indigenous heritage without acknowledgement or benefit-sharing with the source group. To give an example, appropriation of Indigenous ICH occurs when non-Indigenous persons, groups or corporations “adopt images and representations of [Indigenous persons] and [Indigenous] iconography, with little regard for the experience of contemporary Native people”Footnote 20 without asking for source communities’ authorization or consent for that use.
A practical instance of appropriation of ICH is the unauthorized use by companies all around the world of names, images, and the reputation of the Maasai people of today’s Kenya and Tanzania.Footnote 21 The fashion brand Louis Vuitton had a “2012 spring/summer men’s collection which included hats, shirts and scarves inspired by the Maasai Shuka – a traditional African blanket cast in colourful shades of red and blue.”Footnote 22 This and other brands have used the “Maasai’s iconic cultural brand” potentially to “infuse a patina of exoticism to their products and increase sales,”Footnote 23 yet decontextualizing Maasai heritage and offending their values,Footnote 24 and without consulting, getting authorization from, or compensating the Maasai people for that use. While Louis Vuitton makes profit from the sales of its “Maasai-inspired” products that reproduce or replicate Maasai names, images, and designs, and shares none of the profit with the group, almost 80% of the Maasai population live below the poverty lineFootnote 25 and with nowhere near the same means and resources as Louis Vuitton to access and mobilize markets to sell their own products.
This example shows how cultural appropriation can and may often be a negative phenomenon as it is detrimental to the source community while often beneficial to the appropriator. Thus, even though ICH is nonexclusionary or nonrivalrous (in that case, the appropriated ICH being Maasai peoples’ name, designs, and “cultural brand”),Footnote 26 which means that the use of the ICH by Louis Vuitton does not preclude the use of the same ICH by the Maasai, its appropriation still causes negative consequences to the source group. The fact that ICH is nonexclusionary or nonrivalrous also means that the conventional process of restitution of that heritage back to the source community becomes illogical, since the community did not necessarily stop having access to their appropriated heritage to justify a restitution in its conventional sense. Still, the negative effects are obvious and pervasive in many instances of appropriation of ICH and show that threats like cultural appropriation beg the reappraisal of the traditional restitution debate to account for the harms caused by misappropriation of ICH as well.
Appropriation of intangible cultural heritage
Just like tangible elements, when ICH is appropriated, it can be distorted, commodified, or stripped of its cultural, spiritual, and communal significance, thereby alienating source communities and potentially leading to cultural erosion. Moreover, its unauthorized use often profits others but leaves original creators without acknowledgment or shares of the benefits arising from that unauthorized use. Because of the seriousness of those harms, Indigenous groups have been claiming better legal safeguard of their ICH for decades, also noting the insufficiency or inadequacy of the intellectual property system to offer that protection.Footnote 27
Further, while ICH can represent an independent aspect of a group’s heritage, it is also often relevant as an intrinsic and intertwined dimension of tangible heritage.Footnote 28 Or further, it can be said that “all heritage is intangible,” since what gives heritage (including tangible) value and meaning are the “cultural processes and activities that are undertaken at or around them,” that is, the intangible processes that define it as heritage.Footnote 29 In that sense, as approached here, ICH can be standalone cultural elements such as stories, music, dance, rituals, ceremonies, beliefs, knowledge, ways of life, or immaterial identity markers, among others, which can be appropriated by outsiders as independent ICH. Appropriation of (independent) ICH can occur, for instance, when a non-Indigenous music group appropriates a sacred religious song from an Indigenous ceremony and uses that song (without the source community’s consent or even knowledge) as part of a performance in Western media. This occurred when OutKast, a non-Indigenous hip-hop duo from the United States, appropriated “a sacred Navajo (Dine) ‘Beauty Way’ song” and used it, without community authorization, at the beginning of the duo’s performance of the song “Hey Ya!” in the 2004 Grammy Awards,Footnote 30 decontextualizing the song, its meaning, and its purpose, leading to protests by Navajo activists.Footnote 31
Moreover, ICH can also be “dependent on tangible cultural heritage,”Footnote 32 that is, the story reflected in the design (intangible) of a woven rug (tangible) or the ancestral weaving practice (intangible) through which that traditional rug (tangible) is made, such that if the rug is looted or appropriated, the associated ICH is appropriated as well. ICH can be the ritual associated with a particular place, the religious belief associated with an ancient artifact, the identity marker associated with a particular type of headdress, and many more intangible cultural expressions that may not be separable from a material element.Footnote 33 This interconnectedness between tangible and intangible is particularly relevant in the Indigenous context, as many Indigenous groups perceive their heritage holistically,Footnote 34 such that a categorization of heritage as tangible versus intangible is often inconsistent with Indigenous worldviews.Footnote 35 Although Indigenous groups often reject the separation of heritage between tangible and intangible, I adopt and explore this categorization here as it is commonly adopted in legal regimes safeguarding Indigenous heritage and in Indigenous activism for cultural heritage rights in Western legal systems. Nevertheless, this categorization showcases the discrepancy between, on the one hand, the (fragmented) orthodox legal responses to threats and harms affecting Indigenous heritage, which differ depending on whether the harmed heritage is tangible or intangible, and on the other hand, what Indigenous groups have claimed in terms of (holistic) protection of their heritage.
From this discussion, historically, if tangible Indigenous heritage is looted or appropriated, even if that heritage has an important intangible dimension inherently associated with it, conventional restitution discourses have focused on the material object, overlooking the intangible element.Footnote 36 However, it is often the intangible aspect (the identity value of the object; the stories and relationships behind it; its sacred, spiritual, or otherwise symbolic meaning) that gives value to the material element in the first place. For example, Aboriginal peoples in Australia, thousands of years ago, used message sticks “to reinforce oral histories or deliver news between Aboriginal nations or language groups.”Footnote 37 The material heritage, “these flat, rounded and oblong pieces of wood were etched with ornate images on both sides that conveyed important messages and held the stories of the continent’s Aboriginal people.”Footnote 38 In this example, the material element itself is a piece of carved wood, which might be culturally valuable for being an archaeological object. However, the much more meaningful heritage value is embedded in the intangible dimension of the object,Footnote 39 that is, the fact that it reflects an ancient traditional practice and important ancestral form of communication. Moreover, without the traditional knowledge (intangible) on how to read and interpret the carvings on those objects, the material heritage may be perceived by those without such knowledge simply as an old piece of carved wood.
Therefore, it is fundamental to rethink the value of ICH and the harms caused when it is appropriated from the source community, be it a standalone intangible cultural element or the intangible dimension of a material object. It is equally important, thus, to reconsider the legal responses to the misappropriation of ICH, to overcome some of the legal limitations of a tangible versus intangible binary that has privileged the value and protection of the former to the detriment of the latter. To further explore the urgency in considering legal responses to appropriation of ICH, the following section addresses some of the harms it causes that justify the need for legal solutions, including the reappraisal of the conventional tangible-focused restitution discourse.
Possible Effects of the Appropriation of ICH
As regards harms caused by the appropriation of ICH, there can be negative effects on the source community’s identity, cultural integrity, and survival, which may include economic harms (deprivation of material benefits), dignitary and identity-related harms (commodification, misrepresentation, decontextualization, and stereotyping), and harms to voice and credibility. These types of harms often overlap or happen cumulatively in cases of appropriation of ICH, which further reinforces the multitude of negative effects caused by this phenomenon and confirms the need for tailored legal responses.
Economic harms relate to the use of ICH by Indigenous communities in ways that bring economic benefits to the group, but once the ICH is appropriated, those benefits are lost or diminished. It may occur, for instance, when a fashion brand is “inspired” by traditional designs used in an Indigenous group’s piece of clothing and appropriates those designs to launch a line of clothes reproducing the traditional patterns. In this case, as also often happens in the souvenirs market, the source group may be affected by the unfair competition of the outsider company, which might either sell their “substitution goods,” which look Indigenous-made, for much cheaper, or sell them for much more due to the designer brand’s desirable tag on it.Footnote 40 This type of harm is further exacerbated by the fact that, often, mainstream markets allow more space and opportunities to white/non-Indigenous actors (individuals or companies), even if they are appropriators, than to Indigenous creators and sellers.Footnote 41
Economic harms often come associated with dignitary or identity harms.Footnote 42 These types of harm can occur through various processes, such as commodification (turning Indigenous ICH into a marketable product for sale),Footnote 43 and misrepresentation, decontextualization and stereotyping (different forms of portraying Indigenous identities, lives, and cultures incorrectly and disrespectfully).Footnote 44 Commodification can be harmful by changing the cultural nature and role of the appropriated ICH,Footnote 45 for instance, when a sacred song is appropriated via an unauthorized recording and this recording is then copyrighted and sold in the mainstream market. Here the nature of the song changes from sacred to marketable in the Western context due to commodification, and the source group may be affected in its cultural integrity and dignity as the sacredness of the song is violated.
The various forms of wrongful or disrespectful portrayal of Indigenous lives, cultures, and identities through the appropriation of their ICH can also harm Indigenous peoples’ cultural integrity, dignity, and identity.Footnote 46 For one, misrepresenting Indigenous identity can help perpetuate stereotypes, promoting essentialized, distorted, decontextualized, or insulting features of Indigeneity that directly affect not only how mainstream society perceives Indigenous peoples but even Indigenous persons’ perceptions of themselves and their worldviews.Footnote 47 An example is the appropriation, decontextualization, and distortion of Indigenous peoples’ stories, identity elements, and traditions in movies, TV, and literature. For instance, such distorted portrayals have often depicted Indigenous peoples as savages, which helps reinforce a colonial farse of Indigeneity as uncivilized, inferior, and one-dimensional.Footnote 48 Similarly, stereotypes can reinforce an expectation of “traditional,” precolonial, Indigeneity, incompatible with “an identity as modern, industrially developed or developing peoples with complex lifestyles.”Footnote 49
In the case of ICH associated with tangible heritage, decontextualization can occur, for instance, when non-Indigenous persons appropriate and use traditional headdresses in situations and with purposes (like a costume in a party) that conflict with and disrespect the uses of those headdresses by the source communities (where they must be earned and “represent respect, power and responsibility”).Footnote 50 In this case, the ICH elements of societal and governance structure, as well as identity, represented by the headdress, are appropriated, distorted, and decontextualized, hence harming the source community’s cultural identity. These types of harm hinder Indigenous peoples’ ability to define who they are for themselves, enable the erosion of their cultures, facilitate discrimination, and put the heterogeneity of Indigenous identities into question.
Finally, the appropriation of Indigenous ICH can cause harms to the voice and credibility of Indigenous peoples. This type of harm occurs when outsiders appropriate Indigenous voices to speak on their behalf. It happens, for instance, through the unauthorized representation of Indigeneity or even by impersonating an Indigenous person to get some particular form of attention or credibility, either way helping to silence or marginalize Indigenous voices, or limiting the space and opportunities for Indigenous persons to reach that audience and represent themselves.Footnote 51 This form of harm can be exacerbated in discriminatory contexts where actors from a dominant culture are given more space and credibility simply for being part of the dominant culture.Footnote 52 This credibility imbalance can make the work and representations of actors of the dominant culture more readily accepted and valued than those of “subordinated” Indigenous actors or groups, which can worsen that imbalance, contribute to silencing Indigenous voices in such spaces, and, ultimately,Footnote 53 affect Indigenous cultural autonomy.
From this brief account of the possible harms caused by the appropriation of Indigenous peoples’ ICH, I suggest that, although the appropriation of intangible heritage does not necessarily prevent its continuing use by the source community, it does still cause cultural, economic, identity-related, and dignitary harms to those communities. The extent and severity of those harms justify the search for legal solutions to remedy such harms, given that the current international law on this topic is not fully developed or well equipped to do so, as I explore in the following section.
A legal gap and the need for redress
Even though threats to ICH, such as misappropriation, can cause a variety of significant harms to the source community’s identity, voice, cultural integrity, and survival, existing international regimes (such as cultural heritage law, human rights law, and intellectual property law) offering some protection to Indigenous traditional knowledge and traditional cultural expressions are often insufficient or inadequate in their responses to appropriation. While a comprehensive analysis of these regimes is beyond of the scope of this paper,Footnote 54 this section briefly demonstrates the issues with reliance on intellectual property tools in this context and the insufficiency of the safeguarding afforded by cultural heritage law, despite the partial usefulness of these two regimes as avenues for broader Indigenous mobilization for heritage safeguarding.
Briefly, as regards cultural heritage law, while the 2003 CSICH consolidated the important inclusion of ICH within the regime’s realm of protection and acknowledged the role of Indigenous peoples in maintaining and safeguarding ICH,Footnote 55 the framework still struggles to adequately address Indigenous claims against appropriation.Footnote 56 For intellectual property law, the very rationales underlying intellectual property protection often clash with the usual values of ICH for Indigenous peoples. As for the role of human rights law in responding to cultural appropriation of Indigenous ICH, its brief analysis will be carried out separately in the next section. The separate consideration of human rights law is justified by its potential relevance as offering existing legal grounds, even if inferred, for the restitution of appropriated Indigenous ICH. While intellectual property and cultural heritage law can be useful for Indigenous heritage safeguarding, even in international fora such as the World Intellectual Property Organization, Indigenous groups have been asking for human rights–based responses to threats to their heritage,Footnote 57 hence my particular focus on human rights law and its promotion of restitution as redress for appropriation.
Restitution is a key and primary remedy in international law, “designed to re-establish the circumstances in place prior to the occurrence of the wrongful act.”Footnote 58 Restitution is also often deemed an appropriate response to acts of appropriation of tangible heritage as, through restitution, the source community can regain possession and control of the appropriated object.Footnote 59 However, despite international instruments and scholarship noting or suggesting that “[t]he remedy of restitution extends to the intangible elements of cultural heritage,”Footnote 60 the consideration of how restitution could effectively work as an adequate redress for acts of appropriation of ICH is not as common or as developed as it is for tangible elements.
From an intellectual property law perspective, if protected intellectual property is taken without the authorization of the rights-holder, the regime often enables legal mechanisms to stop the appropriator from continuing to use or access that property. Yet Indigenous heritage, for its intergenerational, usually oral, ancestral, and communal nature, often does not satisfy the requirements of key intellectual property tools, which were created without Indigenous heritage in mind. Some of the requirements of tools like copyright, patents, and trademarks include an identifiable individual creator/author, the fixation of ideas in tangible form, and evidence of originality and novelty based on relatively narrow criteria,Footnote 61 which collide with those common features of Indigenous ICH.
From a cultural heritage law perspective, protection of ICH is largely dependent on listing,Footnote 62 which entails states, assisted by experts (not necessarily Indigenous) and possibly communities,Footnote 63 selecting ICH they deem worthy of safeguard and inscribing it on a national and/or international inventory. While listing and cultural heritage law more broadly can be useful by raising awareness and visibility on the importance of ICH and incentivise its safeguarding,Footnote 64 the regime only addresses appropriation as something for states to take measures to avoid, without establishing remedies such as restitution.Footnote 65
Moreover, the types of harm caused by the appropriation of Indigenous ICH might require a legal response that is broader and with deeper cultural and symbolic meaning than a legal order for the appropriator to stop using, accessing, or publishing the appropriated ICH element. The response might need to be broader to reach the affected dimensions of Indigenous identity, self-determination, and cultural sovereignty that might be harmed with appropriation. The legal response must also have cultural meaning in its effort to take the community back to where it was before the appropriation happened, trying to restore the cultural value the appropriated ICH had for the community. It might also need to have symbolic meaning at least in seeking to change the perception of Indigenous groups as “subordinated” and weaker in the power dynamics that enable and are reinforced by appropriation.
For instance, where a secret and sacred Indigenous story that embeds Indigenous laws and spiritual beliefs is appropriated and made public in a book published in the mainstream market, the community’s cultural identity and integrity might be so harshly affected that the mere order for the appropriator to withdraw the publication might be insufficient redress to the community.Footnote 66 Besides the fact that this legal response is likely unavailable in many intellectual property systems because the sacred story might not satisfy the regime’s requirements for protection, the effects of publicization of secret and sacred knowledge might be profoundly hurtful and embarrassing for the holder or custodian of that sacred story, imposing a sense of failure to uphold cultural obligations.Footnote 67 In cultural heritage law, because of its state-centric basis,Footnote 68 the story would likely only be safeguarded if officially listed as national heritage or common heritage of humankind, which would impair the story’s secret nature and would decenter the source Indigenous group in the management of its own ICH. Further, depending on the role of the appropriated ICH in regulating behavior, beliefs, and relationships in the community, the disclosure of the rules to the entire group and beyond can also cause cultural (and religious) erosion, the dismantling of governance systems, ultimately affecting Indigenous (cultural) self-determination.Footnote 69
While the effects of appropriation can be highly contextual, the possibility of serious and harmful consequences to communal cultural identity and existence is pervasive in many contexts. For that reason, a legal response that takes contextual and cultural aspects and particularities of Indigenous ICH into account and that attempts to remedy the harms by returning the community to the situation prior to the appropriation, with effects beyond the property realm, might be needed. As scholars have put it: “[h]ere the main concern is no longer intellectual property, patents and fair benefits, but rather the ability to control or manage information that is materially important to how members of a cultural group define and think of themselves as a people.”Footnote 70 As briefly demonstrated previously, existing norms and rationales in intellectual property and cultural heritage law, while possibly useful in some contexts, largely fail to offer adequate redress, based on control, for the appropriation of Indigenous ICH.
Against this background, aware of the nonexclusionary nature of ICH and thus conscious that the restitution of ICH (“in any literal and exclusive sense”)Footnote 71 might seem illogical, at least in Western epistemology, in the next section I still explore restitution as a possible legal remedy capable of doing more to offer adequate redress than the conventional alternatives in existing regimes. In this exploration of restitution beyond its conventional sense, I approach restitution of intangible heritage beyond the heritage element itself, instead focusing on restitution of control over the appropriated element.
Restitution of intangible cultural heritage through its control
Current international (human rights) legal framework
International law does currently provide sources on which to base an Indigenous right to control heritage and a right to restitution of ICH, which can be connected to enable restitution of control in the case of appropriation. While such sources can substantiate the argument advanced here, the analysis will show that they still lack a well-developed reimagination of restitution capable of not only expanding the concept to apply to ICH but also to give content to the restitution theory in ways that enable its practical effect.
One of the main sources of Indigenous peoples’ right to control heritage and the right to restitution is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), in particular its articles 11 and 31. Article 11 promotes Indigenous peoples’ “right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures […].”Footnote 72 The second paragraph of the same provision establishes, by way of declaration, states’ duty to provide redress, including through restitution, “with respect to [Indigenous] cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.”Footnote 73 Thus, article 11 clearly enables restitution of Indigenous ICH, of which intellectual and spiritual property mentioned in the provision can be examples.
Additionally, article 31 concerns Indigenous peoples’ “right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions. …”Footnote 74 Thus, as a right to control heritage is recognized in article 31, and the possibility of restitution of heritage taken without Indigenous peoples’ consent or in violation of their laws, traditions, and customs (which happens in appropriation) is acknowledged in article 11, restitution of ICH in the context of appropriation finds support in the UNDRIP, despite its nonbinding status as a declaration. Further, in 1993, Erica-Irene Daes, working as a special rapporteur for the Commission on Human Rights (now replaced by the Human Rights Council) also proposed that “each [I]ndigenous community must retain permanent control over all elements of its own heritage.”Footnote 75
Despite the UNDRIP being a General Assembly resolution, thus formally nonbinding, there are increasingly consistent claims of parts of the UNDRIP reflecting customary international law, thus becoming binding. A key source of such claims is the work of the International Law Association (ILA) Committee on the Rights of Indigenous Peoples which, supported by scholars,Footnote 76 evaluated opinio juris (acceptance as law) and state practice to conclude that Indigenous peoples’ cultural rights and identity, which would include the content of UNDRIP articles 11 and 31, have become binding international custom.Footnote 77 Similarly, the right to reparation, redress, and remedies, reflected in article 11(2) and its requirement that states provide redress to Indigenous ICH taken in contexts of appropriation, has also been evaluated by the ILA committee as customary international law.
On this point, it is necessary to acknowledge that debates on the satisfaction of the requirements for these areas of Indigenous rights to have become custom can be controversial as different interpretations of opinio juris and state practice can lead to different conclusions.Footnote 78 For instance, the limited ratification of the only binding treaty currently in force focusing on Indigenous peoples’ rights, the International Labour Organization 1989 Indigenous and Tribal Peoples Convention,Footnote 79 known as the ILO 169 Convention, could substantiate claims of lack of sufficient state practice on those areas of Indigenous rights.
Beyond this debate on international custom, reinforcing the possibility of restitution of ICH as redress for appropriation established in article 11, the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) has also addressed appropriation and repatriation of ICH directly in its reports.Footnote 80 In a 2015 report on the protection and promotion of Indigenous peoples’ cultural heritage rights, the EMRIP acknowledges the harms of appropriationFootnote 81 while noting the extreme practical difficulty for Indigenous peoples to receive reparations, including restitution, for the appropriation of their ICH.Footnote 82 Restitution of tangible heritage is already challenging due to reliance on states’ political will and cooperation by the places or actors keeping the objects, but for ICH it is even harder as the debates around it and examples are not as developed. The EMRIP further addresses restitution of appropriated Indigenous ICH in a 2020 report, highlighting human rights law and the UNDRIP as the main guiding frameworks to approach and assess restitution.Footnote 83 More specifically, for measures to remedy appropriation, the report expressly acknowledges that “repatriation may be an element of remedial measures,” alongside other tools such as benefit-sharing agreements.Footnote 84
Similarly, the Special Rapporteur on the Rights of Indigenous Peoples also addressed this topic in a 2022 report on “Indigenous women and the development, application, preservation and transmission of scientific and technical knowledge.”Footnote 85 Although the report focuses on Indigenous women’s knowledge, former Special Rapporteur José Francisco Calí Tzay made broader statements on Indigenous ICH, including to recognize the threats of cultural appropriation and the inadequacy of the intellectual property regime as a source of redress.Footnote 86 In his recommendations, the special rapporteur expressly calls on states to establish safeguards against the appropriation of Indigenous women’s knowledge and to work with Indigenous peoples to design restorative mechanisms, including restitution, to redress circumstances where their ICH is appropriated.Footnote 87
Finally, the Permanent Forum on Indigenous Issues (PFII) has also drawn attention to the threat of cultural appropriation of Indigenous ICH and the urgency for measures to protect it,Footnote 88 despite not going as far as promoting restitution of ICH as a remedy to the harms of appropriation.
While the works of the EMRIP, Special Rapporteur, and PFII have been importantly supporting the debate on restitution of appropriated Indigenous ICH, their recommendations remain quite broad. They lack detail not only in how ICH can be returned in practice but also in how its restitution can be effective in truly returning the community to its position prior to the appropriation.
To conclude this brief analysis of the current international human rights law framework, it is important to note the two main binding human rights provisions relevant to this debate: article 27 of the International Covenant on Civil and Political Rights (ICCPR) and article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).Footnote 89 The two articles concern and promote Indigenous peoples’ cultural rights: article 27 ICCPR being targeted at minorities but confirmedly including Indigenous peoples,Footnote 90 and article 15 ICESCR being a human right of general application. In the Committee on Economic, Social and Cultural Rights’ interpretation of ICESCR article 15, the provision includes states’ duty to ensure a right to compensation to Indigenous authors whose cultural elements have been unauthorizedly used by third parties,Footnote 91 and a duty to enable remedies and redress where such authors’ moral or material interests are violated.Footnote 92
From this right to redress framed through states’ positive duty to ensure access to remedies, it appears that ICESCR article 15 can be interpreted to reinforce Indigenous peoples’ right to a remedy when their ICH is appropriated in ways that infringe their moral or material interests. While this interpretation strengthens the general legal grounds for the argument advance here, it still leaves the practical and specific aspects and implications of redress substantially unclear. Meanwhile, in the Human Rights Committee’s interpretation of ICCPR article 27, the protection in the provision depends on “the ability of the minority group to maintain its culture, language or religion.”Footnote 93 The provision provides even less guidance than the ICESCR as to which legal avenues Indigenous peoples can resort to if their ICH is appropriated, despite indicating that maintenance of culture (which, in turn, embeds the idea of restitution) is a cornerstone of article 27.
Overall, a brief assessment of existing international human rights provisions’ application to the protection of Indigenous peoples’ ICH confirms that the international framework does already provide for an Indigenous right of control over heritage and a right to restitution of appropriated ICH. Nevertheless, the existing legal tools lack clarity, detail, and practical guidance on how restitution can actually be claimed and be practically achieved in the case of intangible heritage. This gap weakens the promise for restitution not only to provide redress for appropriation but also to enable the source community’s return to their position prior to the appropriation. The analysis of restitution here helps fill this gap by exploring the right of control not only as capable of giving content and specificity to restitution with a view to remedying harms but also a tool to (re)empower Indigenous communities in the context of imbalance that enable appropriation in the first place. Accordingly, the following section delves into a theoretical rethinking of restitution to explore ways to expand the existing notion and give practical content to the process it entails and the promises it embeds.
Rethinking restitution
To consider restitution as a viable and culturally adequate remedy to the harms caused by the appropriation of Indigenous intangible cultural heritage, restitution must be reappraised taking into account the holistic and symbioticFootnote 94 nature of ICH in Indigenous peoples’ cultures and lives. For this exercise, Rebecca Tsosie’s discussion of the broader concept of reparations and its role for Indigenous peoples highlights the need to consider reparations, and restitution as an instrument of reparation, in an intercultural way.Footnote 95 Following Tsosie’s framework, to consider restitution of ICH as a remedy to the harms of appropriation that accounts for the source community’s interests, epistemologies, and contexts, requires understanding restitution as a concept that “is simultaneously emotional and spiritual, political and social.”Footnote 96
Further, restitution has a symbolic role to play in not just returning the community to the circumstances prior to the wrongdoing, but also “respond[ing] to the need to heal wounds that relate to past wrongdoing, as well as contemporary forms of injustice against Native peoples.”Footnote 97 Thus, to think of restitution of appropriated ICH as an adequate and viable remedy means to ensure the conventional purpose of the mechanism is reached but still go beyond it, also incorporating redress for the broader context and history of injustice that enabled the wrongdoing (appropriation) in the first place and to change this context to prevent future injustice.Footnote 98 While these goals are more likely achievable through a broader consideration of various mechanisms of reparations engaged simultaneously or cumulatively (such as restitution alongside compensation, apology, guarantees of nonrepetition, among others), this section focuses on restitution and how it can be perceived in the context of Indigenous ICH to facilitate such goals.
From its focus on restitution and considering the nonexclusionary nature of ICH, the following analysis considers control over ICH as what can be returned to a source community that has had their ICH appropriated. As shown subsequently, the discussion on restitution of control encompasses different but interconnected dimensions of control, and each of these might apply and be relevant to some context but not others, which suggests that the consideration of restitution of control and the role it can play in redressing appropriation of ICH is context-dependent. This relative value of restitution of control and each of its dimensions addressed here is due not only to the fact that the harms suffered by source communities will be context-specific but also because a culturally adequate understanding of restitution as promoted in this paper will only be so if it is adjusted to the understanding of fairness and (redress) adequacy of each affected community.Footnote 99 Thus, the next section explores the restitution of control over appropriated ICH and what it entails, acknowledging that the specific value and role of restitution will depend on each particular situation and the interests of each affected community, while noting that control over heritage is a claim for which Indigenous groups have been long mobilizing.Footnote 100
Restitution of control over ICH
To explore the possibilities concerning the restitution of control over the appropriated ICH to the source community, in this section, I examine control over ICH through three interconnected dimensions:(1) control as power and participation in heritage management; (2) control as stewardship and assurance of respect; and (3) control as voice in shaping heritage narratives. Exploring the restitution of control over appropriated ICH through these dimensions can indicate means to offset the cultural power imbalance with the dominant (appropriator) group and redress the harms caused by appropriation through community agency and authority in deciding whether and how that ICH element is accessed or used and how the community is affected.
Further, these three dimensions can be valuable in mobilization for ICH restitution in the context of appropriation by giving specific content to the restitution claim and specifying what is to be returned to the source community and how this restitution affects not only the appropriated heritage element itself but also the relationship between those committing the wrongdoing and those harmed by it. Ultimately, control over ICH in all of its dimensions is a reflection of Indigenous cultural self-determination and sovereignty, which reinforces the purpose of its restitution and provide grounds for it.Footnote 101 Finally, through these dimensions, I intend to connect the possibilities of control with the potentialities of restitution as a pathway to advance the conversation around the importance of control over ICH for Indigenous peoples in the cultural appropriation context, highlighting the potential of restitution as a mechanism to enable the return of control as a possible legal remedy to appropriation.
While there is no unequivocally binding international instrument expressly guaranteeing Indigenous peoples this right of control over their ICH, the sources mentioned previously show that this is also not an entirely new idea bound to raise severe resistance as it already has some legal backing, especially in human rights law. In international restitution processes, nothing prevents harmed parties from resorting to these sources to found claims for restitution of control, even though the lack of binding norms may facilitate some opposition to such claims. Nevertheless, the possibility of opposition should not be a deterrent to the exploration of new pathways to pursue better remedies to the harms caused by appropriation of ICH, and the existence of supportive soft law in this context reflects a solid first step in the process of reconsidering the possibilities of restitution.
Moreover, there could be important specific challenges with how control is (re)incorporated, for instance, in cases of competing claims from more than one Indigenous group whose ICH has been appropriated, or in relation to who exercises that control within a community. While these can be real difficulties, it would be for communities themselves to assess and address these issues or seek mediated consultation to establish how control would be returned or even distributed between claimants. Ultimately, although challenges may arise in various forms, the theoretical reappraisal of restitution (of control) with a view to broaden the concept and its possibilities for ICH, as this paper lends itself to do, still has value as a new possible pathway to respond to and remedy appropriation. From this, the following subsections explore the three dimensions of control that can base a claim for restitution of control over appropriated ICH.
Control as power and participation in heritage management
The first dimension of control refers to the ability and exclusive power to manage ICH and decide whether and how outsiders may access, use, and engage with it,Footnote 102 and to ensure that the community benefits (either through acknowledgement or financial gains), if they so wish, from that external use.Footnote 103 This dimension of control concerning benefits is supported in ICESCR article 15 and its interpretation as analyzed above, since the provision can apply to protect Indigenous authors’ moral or material interests resulting from their ICH production,Footnote 104 as well as to enable remedies when such rights are violated.Footnote 105
Control here also involves a right for source communities to be acknowledged, consulted, to consent, not consent, and revoke consent,Footnote 106 and a right to participate as protagonists, actively and effectively, in decision-making affecting their ICH. Committees’ interpretations of ICCPR article 27 and ICESCR article 15 broadly support this dimension by promoting states’ positive duty ensure Indigenous peoples’ ‘effective participation’,Footnote 107 including through consultation and consent,Footnote 108 in decision-making processes affecting them. Thus, restitution of control in this context entails ensuring community participation in deciding how the appropriated ICH will be managed, accessed, used, including entirely denying such access to outsiders, such that the use of the appropriated ICH ceases and the community’s entitlement and exclusive decision-making power over that heritage element is acknowledged and implemented.
Restitution of control in this dimension of power and participation enables the source group to allow and maintain the outsiders’ use of the appropriated ICH, if the source community so wishes. In that sense, restitution here remedies the harms of appropriation by ensuring that the community is able to reshape the outsiders’ engagement with the appropriated ICH according to the former’s communal interests and needs, such that the effects of the appropriation become no longer negative or detrimental to the source group. Claims for restitution of control, in this dimension, should thus be substantiated by specific requirements of power (including to consent or not) in decision-making and protagonist participation in heritage management.
The restitution of control over appropriated ICH as perceived through this dimension has broader political and symbolic meaning. It serves as a response to a historic standard of cultural dispossession of Indigenous peoples carried out by colonizing powers and dominant cultures since European invasion of Indigenous lands all over the world, which has ignored Indigenous peoples’ natural and original control over their own heritage.Footnote 109 Restitution of control as restitution of power and participation still does not do away with the historic standard of dispossession, but it does reflect and promote a “resistance to colonial, imperial or, in recent years, global capitalist assaults” on Indigenous ICH.Footnote 110
Counterarguments to (the restitution of) Indigenous control over appropriated ICH in this case are often based on the claim that such control, by enabling the source community to allow or prevent outsider access to and use of Indigenous ICH, could hinder outsiders’ freedom of expression and restrict the cultural commons.Footnote 111 In this effort to consider restitution as an intercultural mechanism that seeks to account for Indigenous communities’ epistemologies and contexts, and whose purpose is to redress and address broader injustices connected to appropriation, these arguments are dismissed as perpetuations of a colonial mindset that insists in perceiving Indigenous cultures as inferior (beneath legal protection) and belonging to all.
Ultimately, reestablishing the source community’s control over appropriated ICH in the form of acknowledging their power and necessary protagonist participation in decision-making and management efforts affecting that ICH demands that international and domestic political actors (states, corporations, organizations) understand Indigenous peoples’ responsibility for their heritage and for future generations.Footnote 112 This responsibility, in turn, also relates to control as stewardship and stewards’ role to ensure heritage respect and protection, which I focus on next.
Control as stewardship and assurance of respect
Another dimension of control over heritage that founds the argument for the restitution of control as redress for appropriation is based on the fact that “many contemporary [Indigenous] people seek, above all, respect and understanding rather than restrictive legal action.”Footnote 113 In this context, adequate redress for the harms of cultural appropriation may often be, for Indigenous groups, that their ICH be cared for and respected according to their own rules,Footnote 114 that the importance of their ICH for the community is comprehended, and that they have a say in outsiders’ access to and use of the heritage to ensure and maintain respect and understanding. While control as reflected in having a say in outsiders’ access to ICH overlaps with the dimension of control as participation and consent addressed previously, control as reflected in respect for Indigenous peoples’ own heritage management rules also has legal support. The UNDRIP article 11(2) addressed previously exemplifies this support by establishing states’ duty to provide redress, including through restitution, for when Indigenous ICH is accessed and taken in violation of Indigenous laws. This way, article 11(2) indicates that Indigenous laws must be respected in outsiders’ access to their “cultural, intellectual, religious and spiritual property,” lest a violation of Indigenous rights be found.Footnote 115 The EMRIP strengthens the legal grounds for this dimension on control reinforcing that Indigenous peoples have their own laws relating to ICH,Footnote 116 and requiring that measures to safeguard Indigenous ICH include “recognition of their ownership or stewardship pursuant to their laws, customs and traditions.”Footnote 117
Unlike the first dimension of control addressed previously, here control refers to having Indigenous views, laws, protocols, and responsibilities concerning heritage management considered and incorporated with a view to ensure that cultural protocols are observed and respected. This dimension is important particularly in contexts where the appropriated ICH is used for purposes or by actors to which the community consents, such as can happen for educational purposes, use by some museums, or an authorized use that causes less severe harms to the community and its responsibilities as heritage stewards.
Like the first dimension of control addressed previously, here, once appropriation of ICH happens, returning control over the ICH element to the source community can also enable more effective Indigenous participation in heritage management, not to decide to exclude outsider access to the ICH, but to be in control of its use and ensure such use respects communal rules. This dimension of control, despite not completely undoing outsider engagement with the appropriated ICH, still enables the reshaping of the relationship between subordinated and dominant cultural groups, making room for a respectful outsider engagement with the previously appropriated ICH, as long as this is what the community wishes.
From this dimension of control, the role of its restitution as a remedy to the harms of appropriation reinforces an important aspect in some communities’ understandings of their ICH stewardship duties; that is, returning control over ICH to the source community “does not mean that [ICH] would not or could not be shared, only that the sharing not be to the ongoing detriment of [Indigenous] communities.”Footnote 118 Ultimately, control as related to stewardship responsibilities and a respectful use of appropriated ICH also overlaps with the third dimension of control addressed here. That is, once the community is in control over the respectful use of appropriated ICH and can follow its stewardship duties, it can also be in charge of the meaning of that heritage and the narratives built around it. The next subsection further explores this third dimension.
Control as voice in shaping heritage narratives
As discussed previously,Footnote 119 when Indigenous ICH is appropriated and misused it can lead to severe effects on the community’s identity, both by its members’ self-perception and externally. These negative effects are due to the role of heritage as “an act of communication and meaning making,” that is, a narrative that helps tell a story and shape identities.Footnote 120 The negative effects of appropriation can take place, for instance, when the meaning of appropriated ICH is misrepresented, changed, or distorted, such that the way the ICH reflects or represents its source community causes the distortion of (elements of) the very stories and identity of that group. For instance, the use of Indigenous names or words to make something external pass as being part of a certain community can lead to the perception of that community’s identity elements to change based on the new meanings given to the appropriated names and words.
Regaining control over the appropriated ICH, in this scenario, can mean recentring the source community’s voice in determining or restoring the meaning and narrative around the appropriated ICH. Thus, in this dimension of control, its restitution can help redress harms caused by appropriation by, for instance, stopping misrepresentations of Indigenous cultures, reframing narratives on Indigeneity, or dismantling stereotypes built based on the misuse of the appropriated ICH. Article 11(2) of UNDRIP is again an example of legal support for this dimension of control by indirectly indicating that outsider access to Indigenous ICH must occur respecting Indigenous “laws, traditions and customs.”Footnote 121 While not directly framing control as voice, the provision can be interpreted alongside an EMRIP report that requires respect for Indigenous peoples’ “own approaches” to ICH.Footnote 122 Together, these sources can be read to frame Indigenous traditions, customs, and approaches as including Indigenous views and interpretations of ICH, which must be respected in forming understandings or narratives around that heritage.
Further, returning control over appropriated ICH to the source community as a form to elevate their voices in shaping heritage narrative means ensuring that it is Indigenous laws, epistemologies, ontologies, and interests that underly the creation, change, development, and (re)framing of the meanings associated with the ICH. Moreover, similar to control as stewardship and assurance of respect, the restitution of control as voice can also entail the “retention of the philosophies, significations, knowledges, and strategies of [I]ndigenous peoples as being the key to any consideration of the cultural expressions of their making.”Footnote 123 This retention is important because heritage is closely linked to politics and has significant political value, including in the construction and shaping of narratives about memory, identities, and (hi)story.Footnote 124 These narratives that are created, maintained, and recreated about heritage are what gives the heritage its value, defines it, and determines how it is perceived, approached, and protected (or not).Footnote 125
Further, the importance of Indigenous voices being the ones shaping the narrative about their ICH must be understood in the context of oppression, marginalization, and cultural disenfranchisement to which Indigenous peoples have been and often continue to be subjected by colonial powers and settler states. Thus, the control of the narrative about appropriated ICH is fundamental not only to maintain the source community’s control over the ICH’s story and value and the group’s own identity as it connects to the ICH but also to ensure that the political power that might be embedded in the ICH’s meaning is preserved according to the community’s own views and sense of cultural integrity. In other words, returning control as a way to (re)center Indigenous voices in shaping the narrative around the appropriated ICH is ensuring the source community is able to continue to tell its own story. Ultimately, this dimension of control also embeds empowerment, decolonial resistance, and (cultural) sovereignty, as the return of control over misappropriated ICH here entails “retaining the strength and resonance of original voices and avoiding co-option into a dominant cultural ethos.”Footnote 126
These three dimensions of control over ICH can overlap and complement each other but might also reflect different interests for communities seeking a remedy to the misappropriation of their ICH. A harmed community can assess which dimension best serves their interests and better fits the context of appropriation and the features of the ICH the control over which they want returned. While the examination of these dimensions here has focused on reappraising the concept of restitution to expand its possibilities into the realm of intangible heritage, the practical effects of claims for restitution of control over ICH based on these dimensions are not elusive. Indigenous peoples’ historic mobilization to regain control over their heritage has led to significant progress in international and domestic contexts, and the power of such mobilization, if willing to engage with the broader notion of restitution discussed here, could also materialize useful new pathways to remedies to the misappropriation of ICH.
Concluding remarks
Despite a history of cultural disenfranchisement arising from colonization and imperialism worldwide, Indigenous peoples have consistently mobilized for better safeguards for their cultural heritage. From these efforts, international and domestic legal frameworks have at times enabled, although at an insufficient rate and speed,Footnote 127 the restitution of some of the heritage stolen from Indigenous communities. The discourse about restitution, however, has been largely limited to the context of tangible objects. For intangible heritage, the possibilities of restitution as a remedy to misappropriation have been underexplored.
This paper has examined the concept of restitution and its potential beyond the conventional discourse to identify how it could be applied to the intangible realm. I have considered the potential of restitution in this context through the idea of restitution of control over the appropriated ICH. Once an outsider misappropriates an Indigenous community’s ICH, restitution can work as a remedy by returning the control over the appropriated ICH to the source community. This use of control to substantiate a claim for restitution can rely on various, sometimes overlapping, often complementary, dimensions of control: as power and participation in heritage management; as stewardship and assurance of respect; as voice in shaping heritage narratives.
The specific contours of the exercise of a (returned) control over ICH in each case will depend on the harmed community’s interests and assessment of the circumstances. In any case, nonetheless, the restitution of control is presented as a possible remedy as it can go beyond existing (often inadequate) legal responses (such as the ones available in intellectual property and cultural heritage law) that have failed to capture broader inequalities that enable and are reinforced by practices such as cultural appropriation. Control, therefore, becomes not only a remedy for specific harms but a wider political tool that seeks to (re)empower Indigenous groups, ensure their protagonist participation in heritage decision-making, elevate their voices above cultural power imbalances, and fuel their cultural self-determination.
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